Smile, you may be on candid (and possibly illegal) drone camera

After twice being buzzed by low-flying drones, Morry Bailes investigates rules for an industry taking off and leaving privacy behind.

May 18, 2023, updated May 23, 2023
Photo: Josh Sorensen/

Photo: Josh Sorensen/

It’s an increasingly common occurrence. You’re enjoying a quiet day on the beach, or wandering along a jetty with an ice cream, or at an attraction or tourist icon, when into your consciousness comes a strange mechanical sound. You wonder what is interrupting your idyll, and then the dawning realisation; there is a recreational drone doing the rounds overhead.

Smile, you may be on candid camera – as well as feeling annoyed by the inconsideration of a person for whom flying a prop-driven machine is more important than immersing themselves in the occasion itself.

So is it lawful? The answer is maybe sometimes and maybe not at others. And if it’s not – what to do? It’s not like there are dedicated drone police on patrol in every public setting. Drones however are here to stay and increasingly used in all walks of life. They are another technology we cannot ignore and which has implications for safety, privacy as well as representing an opportunity for a wide range of businesses.

The law of drones is Commonwealth law. The power to regulate has been invested in The Australian Civil Aviation Safety Authority, CASA. That is because a drone essentially falls under the definition of being an aircraft. CASA refers to them as Remotely Piloted Aircraft. Further, as CASA also regulates other forms of aircraft and air travel, and as early on there was a concern about the threat of drone use in and around airports, CASA was put in charge of the lot. The relevant enabling law is contained in The Civil Aviation Safety Regulations Part 101 if you’re that interested.

When drone technology first hit our shores, and interest gathered, there was a paucity of law and regulation. Driven not only by concerns about the misuse of drones and their potential use for unlawful and terrorist activities, but by the general safety of the public, we have gone from having none or little regulation, to the opposite. It’s actually quite an exercise to wade through the many requirements and restrictions set by CASA. There is no greater joy to a regulator than to be asked to regulate, so here is an attempt to distill some of what must be complied with if your singular delight is interrupting the quiet solitude of other of your species by placing a small propellor driven mechanical object into the Australian sky.

First the law creates a distinction between commercial drone use and personal or recreational use. Dealing with commercial use first, drones have proved a boon for farmers and agriculturalists. They can be used for asset inspections such as multi-story buildings and rooftops, they are used in mining, mapping, forestry, by civil engineers, and by realtors when surveying or photographing property. I have had the personal experience of having a noisy commercial drone flown (without consent and without notice) down a property line at a residence. In short, without consent of the landowner. That is potentially unlawful, but that aside, just plain discourteous.

We are also well aware by now of the military application of drones which have featured heavily in the Ukraine conflict. It’s fair to say the face of war changed in 2022 with a new understanding of the devastating effect of drone-led warfare.

Commercial operators usually fly larger drones, and they are permitted to. But the conditions are far stricter than for recreational use. First it is necessary for any commercial drone pilot to have accreditation. There are some exclusions to that relating to drone size, and if its use will be restricted to your land only. Otherwise accreditation is required. Accreditation seems to be a fairly simple exercise, and you may do so from the age of 16. There are definitions around what constitutes commercial use. From mid 2023 it will be necessary to register any drone above 250g, and to advise CASA of its loss if it is destroyed or stolen.

As to use, above 250g and drones cannot be used within 5.5 kms of an airport. Likewise flying near emergency response areas is prohibited. Common to both commercial and recreational use is a prohibition on flying more than one drone at the same time, flying a drone out of line of sight, flying it in fog, cloud or smoke, night flying, and flying above 120 metres.

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Not only is it often unlawful but it’s damned annoying, and discourteous

It’s the use of drones and the public that’s seems to be either the least understood by drone operators or least observed, or both. There are clear rules for drone use over the public. In short, you cannot. So that person who recently flew a drone over  my family’s  heads as we were enjoying a stroll along Vivonne Bay jetty acted unlawfully and could be fined, not that I’m holding on to it or anything. The closest that a drone is permitted to be flown is 30 metres away from any member of the public, other than those people helping to control or navigate the drone. You are strictly prohibited in flying a drone at any height over a populated beach, a wedding, a sports event, a concert, a road that is occupied or any populous area.

There are two other rules. Drones cannot flown remotely from another location. Think Eye in the Sky. Drones cannot record film of people.

Penalties for breaking the law are dealt with by CASA. There are obvious problems with that approach. Whilst police can report matters to CASA, they can do nothing more. It is then a matter for CASA. A member of the public can also complain, but where in a sea of people is the drone operator? If they can be seen, how to begin to identify them and how on earth to report? All it requires is the non-cooperation of the operator and that’s the end of it, unless police are nearby.

It would be  interesting to hear from CASA in how many matters it has actually penalised recreational users in Australia. Unless it’s your next door neighbour or someone whose identity or address is known, it’s a likely waste of time trying to do anything about it. Commercial operators are in a different category as they are much more likely to be able to be identified. Because of that they are also more likely to abide by the rules.

If detected and found liable for an offence, the range of penalties goes from education and warnings, to fines and then to disqualification of accreditation. The reality is that the practicalities of attempting to secure a penalty makes something of a mockery of the intentions behind the law. It is often thus in the lofty Houses of Parliament that politicians pass laws that are largely pointless in practice, but enable the lawmakers to assure the public that they have it covered. If there is a lesson here, it is that laws are largely useless if they cannot be policed, and that is by no means CASA’s fault.

The proliferation of drones, like all technology is simultaneously a positive and negative. For many commercial operations it’s enormously helpful, and as good technology ought to do, cuts out what have become unnecessary tasks and operations. But for the surveying of suburban and city real estate, given that most commercial use is otherwise ‘out of sight and out of mind’, most of us don’t care about that type of drone use. As to military application, it looks a lot like it’s the new norm, and that war will not be fought without drone use for a long time into the future.

However it is inconsiderate and unlawful recreational use that is its primary negative. Sure, we have noise all around us, but when we go to remote and quiet places, to monuments and landmarks, we go with  the expectation that we are not going to be ‘buzzed’ by drones. Not only is it often unlawful but it’s damned annoying, and discourteous. There is also the lingering suspicion that the operator is in fact filming, and that inevitably the public will be recorded, which is a breach of regulations and a gross invasion of privacy.

As to drone law, it’s as good as its enforcement, but otherwise seems largely written for those responsible operators who both know the law and adhere to it. There are many who sadly don’t. For them, perhaps take an example from Florence Welch of Florence + the Machine, who encourages fans to ‘all put your phones away’. If you came to a beach to take in the view by drone, perhaps try the radical experience of just living the moment. There are plenty of other places to fly your remotely piloted aircraft. Our public places are much nicer without the mechanical song and whir of drones.

Morry Bailes is Senior Lawyer and Business Advisor to Tindall Gask Bentley Lawyers, past president of the Law Council of Australia and a past president of the Law Society of South Australia.

Topics: Drones, law
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